INS Issues Interpretation On Law Extending H-1B Status Beyond Six Years
by
Cyrus D. Mehta

Section 106(a) of the American Competitiveness in the 21st Century Act (AC21) permits a foreign national to seek one-year increments of H-1B status beyond the statutory six-year cap. The ability to extend status beyond six years is crucial because the labor certification process - the first step in an employment-based sponsorship for the green card - takes lengthy periods of time. If the labor certification application was not approved well before the end of the sixth year of the H-1B visa, the foreign national would need to leave the US or change to another nonimmigrant status within the US.

Section 106(a) was enacted in October 2000 to provide relief to H-1B visa holders reaching the sixth year. This provision permits extensions of stay beyond six years for those H-1B visa holders on whose behalf are filed either an immigrant visa petition (Form I-140) or an application to adjust status (Form I-485) for classification under one of the employment-based categories pursuant to Section 203(b) of the Immigration and Nationality Act (INA), if at least 365 days have elapsed since the i) filing of a "labor certification application" on the foreign national's behalf, or the ii) filing of the above I-140 petition.[1]

Since labor certification takes the longest, most individuals under the first prong would be seeking an extension of the 6-year cap, namely, that a labor certification application has been filed 365 days prior to the date an extension request beyond 6 years is filed with the INS. However, a pending labor certification in itself does not provide the statutory basis of an extension beyond six years. According to Section 106(a), the filing of an I-140 petition is also required in order to be eligible for an extension beyond six years. Most I-140 petitions may only be filed once labor certification is approved.[2]

A liberal reading of §106(a) might allow an extension of H-1B status beyond six years even if the labor certification filed by the current H-1B employer has not yet been approved. For example, Corporation A has filed a labor certification application for an H-1B employee on May 4, 2001. That employee's sixth year in H-1B status will run out on June 1, 2002. Because of the backlogs in the New York State Alien Certification Unit, it is doubtful whether the application will be certified in time to file the I-140 petition by May 4, or even by June 1, 2002, thus allowing the employer to file a seventh year H-1B petition. However, the H-1B employee is also the beneficiary of an approved I-140 petition in the same occupational classification filed on his or her behalf by a former H-1B employer, Corporation B. That petition was based on a labor certification application filed on November 18, 1999.

At issue is whether the H-1B employee at Corporation A may benefit from Section 106(a) and seek a seventh year of H-1B status for its employee based on the labor certification and I-140 petition filings of Corporation B.

This is precisely what a New York based immigration attorney, Naomi Schorr, asked Efren Hernandez, Chief, Business & Trade Branch, at INS Headquarters, Washington, D.C. in a letter dated March 27, 2002. She suggested that Section 106(a) did not require that a labor certification and I-140 petition emanate from the current employer for it to obtain a 7th year extension on behalf of an H-1B employee. Ms. Schorr argued that Section 106(a) refers to "a labor certification application" and "a petition." According to Ms. Schorr, "Congress' use of the indefinite article "a," rather than its use of the definite article "the" seems to suggest that the benefit of the seventh year in H-1B status flows to those for whom a labor certification application or petition was filed more than a year ago, and not necessarily a labor certification or petition filed by the same employer submitting the seventh year H-1B petition."

In a letter dated April 24, 2002, Mr. Hernandez agreed with Ms. Schorr's contention that the language of AC21 appears to allow the employer of an H-1B nonimmigrant to seek an extension of stay beyond the sixth year as long as the foreign national is the beneficiary of any labor certification application or any immigrant worker I-140 petition. The labor certification application and Form I-140 need not relate to the foreign national's current employment situation, according to the INS official. Mr. Hernandez, however, cautioned that this interpretation would be explored within the context of the rulemaking process. At present no rule has been issued by the INS implementing AC21.

Based on a liberal "alien-based" reading of §106(a) of AC21, other possibilities may also exist to extend H-1B status beyond the sixth year. For instance, if the employer has filed a labor certification, which is still pending at the end of the sixth year, the H-1B visa holder, and the current employer desirous of a seventh year, could file an I-140 petition under a different basis that would not require the approval of a labor certification. For example, one could file an I-140 petition (and in some instances even self-petition) without the labor certification under the employment-based first preference "persons of extraordinary ability" and "outstanding professor or researcher" sub-categories[3] as well as under the "national interest waiver" exception of the employment-based second preference.[4] One assumes that the foreign national is at least prima facie eligible to file under these categories.

As Section 106(a) requires that "a labor certification application" and "a petition" be filed, this writer is of the opinion that there is no need to require a nexus between the previously filed pending labor certification and the I-140 petition, now being filed under a different category. Even if the I-140 petition were not to get approved ultimately, it would have at least provided a springboard for the H-1B employee to obtain a seventh year in H-1B status. Of course, one should refrain from filing frivolous I-140 petitions under these categories if the foreign national is clearly not eligible.

Mr. Hernandez's letter does not constitute law. When the INS promulgates a rule implementing AC21, it could well reach a different conclusion. At present, however, H-1B holders running out of time could take advantage of a generous interpretation of Section 106(a).

[1] Section 106(a) reads as follows: (a) Exemption from Limitation - The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of the Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since -

the filing of a labor certification application on the alien's behalf (if such certification is required for the alien to obtain status under such section 203(b)); or

the filing of the petition under such section 204(b).

[2] There are circumstances where an I-140 petition may be filed without having to first obtain labor certification. This will be discussed later in the article.

[3] INA Section 203(b)(1)(A) & (B).

[4] INA Section 203(b)(2)(B).

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.